The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Saturday, October 01, 2005

Federal courtrooms as Sherwood Forest

Imagine that you're a trustee. (You've never heard a fairy tale start with that line, I'll bet. But this isn't a fairy tale, so bear with me.) The trust to which you owe fiduciary duties owns, and has rented out, a house, so you're effectively acting as that property's landlord on behalf of the trust. You must act prudently, lest you become personally liable yourself to the trust for mismanagement. You can't just make decisions based on a lark.

Imagine further that the house was rented to a husband and wife (and indeed, the trust is connected to the husband's family). But they're getting a divorce. The wife has kept possession of the property, but neither she nor her husband nor anyone else have paid you (as trustee) any rent for months. On behalf of the trust, you reluctantly start the mechanisms for evicting the wife. But at the last possible moment, the eviction is blocked when the wife files for personal bankruptcy.

So now you've got to get the approval of the bankruptcy court to regain possession of the property. You ask the bankruptcy court to lift the "automatic stay" that blocked the eviction proceedings. That kind of request is one of the absolutely routine (if sad) proceedings that bankruptcy courts handle in large volume, day in and day out, and you're going strictly by the book. And as per that routine, the federal bankruptcy judge agrees with you, rules for the trust, and orders the wife to leave the property.

But bankruptcy judges are subject to supervision from federal district judges. And suddenly, to your complete surprise, one of those federal district judges yanks your case out of bankruptcy court, and pulls it instead into his federal district court. He hasn't been randomly picked out of all the federal district judges in that district (which is one way the federal courts prevent corruption and misconduct); instead, he's picked himself. And for reasons he won't explain, he orders that the wife can stay in the house. Indefinitely. Rent-free.

Imagine further that every other lawyer and judge who looks at this situation agrees that what this particular federal district judge has done is simply incomprehensible. And it looks really fishy, because there's a connection between him and the wife: She'd been prosecuted in his court for fraud, but she'd pleaded guilty and the federal district judge had put her on probation. And he'd been meeting personally with her, supervising her probation. That by itself is pretty rare, but it's something this judge has done before with other probationers. And this wife, well, she's cute — "waif-like," everyone says. (I'm thinking Kate Mossish, without the cocaine and the heroin, one hopes; or maybe Nicole Kidmanesque; or Keira Knightlyescent, if she's really young.) Now don't jump to conclusions — nobody can prove, and nobody even claims to have a solid basis to claim, that there's an additional personal, much less sexual, relationship between them beyond "judge/probationer." But the federal district judge admits that it was through his supervision of her probation that her circumstances with the house and the eviction proceedings somehow came to his attention. Exactly how is disputed, but it's also clear that it wasn't through any normal means. The lawyer you've hired to represent you and the trust was kept entirely in the dark about it, for example. The proper motions weren't filed, bonds weren't posted, certified letters weren't sent, notices weren't given, magic words and incantations weren't uttered, and rules weren't followed. They just weren't, not even sorta-kinda. None of them.

Yet this federal district judge continues to block your every effort to regain possession of the house for the trust. He won't give a reason why other than "Because I said so." And the wife just keeps living in the house — absolutely rent-free! — for seventeen more months. Eventually, some judges from the court of appeals — the next level up from the district courts — start looking at this pretty hard and asking some embarrassing questions. So the federal district judge finally punts the case over to another federal district judge (but it's one he's hand-picked). And finally, finally, the court of appeals issues an extraordinary order to make the wife leave the house.

But on behalf of the trust, by now you've run up tens of thousands of dollars in legal fees and expenses that the wife will never pay. The trust has lost about $35,000 more in rental income that will never be recovered. That is, the wife's gotten that much value from the trust — absolutely for free. But her bizarre protector, the federal district judge, refuses to admit any wrongdoing, except maybe (he says through his own lawyer!) that he ought to have done a better job of preventing "miscommunications." He can't offer any legal justification for what he's done — "not a case, not a statute, not a bankruptcy treatise, not a law review article, not a student note, not even a blawg."

Now imagine further that when you've used the legal and appropriate mechanisms for pointing out and challenging judicial misconduct, the chief judge of that court of appeals dismisses your complaint — twice. She won't even dig into the other fishy facts to sort out the ones that are in dispute. She doesn't bring all this to the attention of the House of Representatives, so they can consider whether to begin impeachment proceedings against this federal district judge. She won't make the federal district judge reimburse the trust. She doesn't suspend him or dock his pay. She doesn't even make him apologize. The chief judge and her fellow federal judges have the legal power to do those things, to police their own ranks; indeed, they have the responsibility and the duty to do them when appropriate. But when you try to appeal her ruling, the majority of a Judicial Council comprising five other circuit judges and five other district judges votes — over one and a half dissents — to uphold what the chief judge has done. And now you're done; you have no further appeal, you can't go to the Supreme Court. You're at the absolute end of the line.

Now imagine that you've just told this outrageous tale of woe to me, and that you ask me: "Beldar, what do you think?"

I'd say to you: "Friend, I think you must live within the jurisdiction of the United States Court of Appeals for the Ninth Circuit."

I'd say: "I'm glad there's at least one judge who was on that Judicial Council who's brave enough to publish his blistering thirty-nine page dissent, just to tell your sad tale to the public." Indeed, that judge is absolutely correct when he writes:

Congress has surely not made us the most powerful judges in the world so that we can bestow thousands of dollars of bounties on our personal favorites whenever we feel like it.

And likewise when he writes:

A federal courtroom is not Sherwood Forest; a judge may not take property from one party and give it to another, except by following the established rules of civil procedure.

And then I'd say: "But I think there are quite a few other judges out there who must not understand the incredible damage that this sort of mess does to our judicial system. And that makes me really sad, and really worried too."

Nobody in this tale lives happily ever after.

(Hat-tip to Patterico, who in turn credits Jonathan S. Haas.) UPDATE (Sun Oct 2 @ 11:30am): A reader emailed me to point out that Denise Howell (who also blogs at Bag and Baggage and originated the term "blawg") waxes poetic over one aspect of this dissent over at Corante. (I didn't follow all the links, but did the one about the thong.) AndHowardBashman (who is many things but not likely waif-like) also has the story (plus a link to a 2004 LAT writeup at an earlier stage of the case, if you want to know the federal district judge's name); Howard confirms that this dissent appears to be the first judicial use of "blawg." We have nowhere to go but up, it seems — oh, how I aspire to someday approach the credibility, or even the popularlity, of a bankruptcy treatise! — but from tiny acorns do mighty oaks grow in Sherwood Forest and legal precedent.

That story is disturbing. If it becomes anything other than extremely rare and unusual, it will be known as a portent of the realization of the warnings of the imperial judiciary. CJ Roberts should be made aware of this case. He strikes me as someone who would see the extreme risk in this and might actually do something about it.

Give credit where it's due. The 9th Circuit is leaving an easy to recognize track record. With or without incantations; this is a "fairy tale oft worth repeating."

Reputations count for points. Whether the blistering attacks come from Martin Luther (against Pope Leo, who fed and dined DaVinci, Michaelangelo, and Raphael, among others. All with money raised by granting "indulgences." Luther called Leo Satan's poop.) Big changes occur even when we worship the golden calves. Since Christ's work wasn't about faking indulgences to build the Vatican's art collection. The rest is history.

Wonderful story, Beldar! Glad you told it. And, glad I can copy and paste it all to friends.

Perhaps the Supremes will grant cert and find that foreign courts are allowed to act this way so it's okay. Or perhaps they'll find some penumbra of rights that protect judges who may or may not be involved in amorous relations with their charges. (After all, I think it's part of the freedom of association or privacy or something.)

Or, my personal favorite, Congress could hold hearings on this matter, gather evidence and impeach the judge who thinks he is above the law.

[a] complainant or judge aggrieved by a final order of the chief judge under this section may petition the judicial council of the circuit for review thereof. The denial of a petition for review of the chief judge's order shall be final and conclusive and shall not be judicially reviewable on appeal or otherwise.

Rule 14(i) provides that "[t]he complainant and the judge will be notified of any right to seek review of the judicial council’s decision by the Judicial Conference of the United States and of the procedure for filing a petition for review." But if the Chief Judge's order dismisses the complaint on grounds that "appropriate corrective action has been taken or that action on the complaint is no longer necessary because of intervening events," 28 U.S.C. § 352(b)(2), then 28 U.S.C. § 353(a) is never triggered, no special investigatory committee (factfinding body) is convened, and there's no action taken under 28 U.S.C. § 354(a). You can only appeal to the Judicial Conference if there's been action under section 354(a), see Commentary to Rule 14, "Right to Petition for Review of Judicial Council Action"; see also 28 U.S.C. § 357(a).

So basically, if the Judicial Council in the circuit agrees with the circuit's Chief Judge that everything's hunky dory and been smoothed over (as happened with this complaint), that's the absolute end of the road.

Interpretive caselaw says these complaints aren't considered "cases [or] controversies" for Article III purposes, and the Supreme Court therefore has no certiorari jurisdiction.

I suppose it's not inconceivable that the Supreme Court (or the Chief Justice, or maybe under his direction, the Judicial Conference) might attempt to intervene by asserting "inherent supervisory power." But I wouldn't hold my breath.

Impeaching him is all very well, but it won't make the victim whole. It seems to me that the judge's actions go well beyond mere misconduct, and all the way into the territory of ultra vires. An order given without any basis in law is not a lawful order, and, had this been fully appreciated at the time, need not had should not have been obeyed.

In practise, of course, it was not possible to ignore the invalid orders, and damage resulted: both the $35K in lost rent, and all the legal costs. It seems to me that since the judge acted ultra vires, he's not protected by judicial immunity, and this money ought to be recoverable from him in a personal civil action.

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